Allianz Australia Insurance Ltd v Shamoun [2013] NSWSC 579

Allianz Australia Insurance Ltd v Shamoun [2013] NSWSC 579

The assessor expressly adopted a buffer approach to future economic loss, and that approach was reasonably open because the claimant's pre-accident business had only recently been established, the financial material covered only about six months, and any projection of earnings was necessarily speculative. The assessor made sufficient findings about the claimant's likely circumstances but for the accident and the likely comparative success of his new venture. Accordingly, Allianz did not establish that the assessor asked the wrong question, failed to consider actual earnings, failed to comply with s 126, or otherwise committed jurisdictional error.

Jurisdiction
Australia
Judgment Date
17 May 2013
Procedural Posture
Application Pursuant to S 69 of the Supreme Court Act 1970 for Relief in the Nature of Certiorari in Respect of a Claims Assessor's Decision Under the Motor Accidents Compensation Act 1999 / Supreme Court Determination of Application for Judicial Review of Assessment of Future Economic Loss
Outcome
Application for judicial review dismissed.
Legal Topics
['jurisdictional Error' 'claims Assessor Assessment of Damages' 'future Economic Loss' 'buffer Approach' 'section 126 of the Motor Accidents Compensation Act 1999']
['administrative Law' 'motor Accidents Compensation' 'judicial Review' 'personal Injury Damages'] ['jurisdictional Error' 'claims Assessor Assessment of Damages' 'future Economic Loss' 'buffer Approach' 'section 126 of the Motor Accidents Compensation Act 1999']

Case Brief

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Procedural Posture

Application Pursuant to S 69 of the Supreme Court Act 1970 for Relief in the Nature of Certiorari in Respect of a Claims Assessor's Decision Under the Motor Accidents Compensation Act 1999 / Supreme Court Determination of Application for Judicial Review of Assessment of Future Economic Loss

Legal Issues

  1. 1 ["Whether the claims assessor's assessment of future economic loss involved jurisdictional error by asking the wrong question under s 126 of the Motor Accidents Compensation Act 1999." "Whether the claims assessor failed to take into account relevant considerations, including evidence of the claimant's actual earnings." 'Whether it was open to the claims assessor to adopt a lump sum or buffer approach to future economic loss.']

Ratio Decidendi

The assessor expressly adopted a buffer approach to future economic loss, and that approach was reasonably open because the claimant's pre-accident business had only recently been established, the financial material covered only about six months, and any projection of earnings was necessarily speculative. The assessor made sufficient findings about the claimant's likely circumstances but for the accident and the likely comparative success of his new venture. Accordingly, Allianz did not establish that the assessor asked the wrong question, failed to consider actual earnings, failed to comply with s 126, or otherwise committed jurisdictional error.

Court Disposition

Application for judicial review dismissed.

Orders

  • ["The plaintiff's summons should be dismissed with costs."]